Expert legal interpretation of the new Criminal Procedure Law to prevent Menthod

's property, belongings. With the rapid development of economy and society, these provisions have been unable to respond effectively to new situations and changes in the practice of criminal justice, it is difficult to meet the national and public awareness of the need to combat corruption, crime. Therefore, the new Code of Criminal Procedure promulgated in 2012 the addition of the suspect, the defendant go into hiding, confiscation of illegal proceeds of the death of a program to provide for major criminal cases of corruption and bribery, terrorist crimes, criminal suspects or defendants to escape and hide, wanted a year after not appearing in court, or suspects, the death of the accused, the illegal income and other involved property shall be recovered in accordance with the provisions of the criminal law, the People's Procuratorate to the people's court application for the confiscation of illegal proceeds. Which had also caused a number of questions: the suspect, the defendant without the people's court trial, their property would be confiscated if the violation of the criminal law and procedure "without the People's Court according to law, no person shall be found guilty," the basic principles. How to respond to these questions, I think the key is to demonstrate the Code of Criminal Procedure to establish the legal basis of the program, at the same time to clarify the basic characteristics of the confiscation of property before the judgment, to help us accurately understand and grasp the provisions of. First, the legislative background of the property forfeiture proceedings before the judgment First, our current legal and judicial interpretation of no suspects, defendants escape and hide, make specific provisions to deal with the problem of property involved in the death, did not build the system is complete, workable confiscation procedures. Only 64 of the Criminal Law principles provide all the riches of the illegal proceeds of the criminals, should be recovered or ordered restitution. 1996 Code of Criminal Procedure 198 provides for seizure of suspects and freeze the property of the defendant, the court, procuratorate and the public security organs in the pre-trial stage safekeeping and returned to the victim obligations in a timely manner, in the implementation phase confiscated the obligations of the state treasury and returned to the victim. When the suspect, the defendant in the investigation, the prosecution phase of death, although the "six organs" on a number of issues in the implementation of the Code of Criminal Procedure provides that "" as well as the highest law, Zuigao Jian and developed by the Ministry of Public Security judicial interpretation provisions People's Procuratorate , the public security organs may apply to court ruling the notice freeze criminal suspects deposits and remittance of financial institutions to the state treasury or returned to the victim,hogan, but the People's Court can only deal with seizure, freezing property and interested party can not participate. On the contrary, according to the provisions of Article 15 of the Code of Criminal Procedure in 1996 and the relevant judicial interpretation, has started proceedings for death, the absconding suspects, the accused, the public security organs, the People's Procuratorate and the People's Court shall not be held criminally responsible, shall be based on the different stages of the proceedings were made to dismiss the case, not to prosecute,abercrombie pas cher, the termination of the trial or acquitted processing, that is the root cause of the questioned. Secondly,air jordan, corruption and bribery cases in the presence of a large number of the suspect, the defendant committed suicide to avoid criminal responsibility and the case, that is the practice common corrupt suicide phenomenon. China has not yet established a system of trial in absentia in the case of the suspect, the defendant does not appear in court, the courts have no property of its involved coercive sanctions to achieve the purpose of illicit money and goods recovered. And the detection of such cases rely heavily on the defendant's testimony and the testimony of witnesses, once the suspects go into hiding or suicide, will not only interrupt the clues,louboutin, and protection of other stakeholders, the more important is its close relatives are able to retain that criminals are illegal to obtain large amounts of property, is the so-called "sacrifice themselves, happy family." Institutional gaps can easily breed corruption, reflect our judgment before the property forfeiture proceedings absence due to be investigated for corruption and bribery ineffective legislative defects exacerbate the spread of corrupt suicide phenomenon, the lack of property forfeiture proceedings before judgment is corrupt suicide are common occurrences root cause. Again, corruption and bribery cases in the presence of a large number of suspects, the accused absconding to evade criminal liability situation, that is the practice common corrupt missing absconded phenomenon. And flight-type corruption cases are showing crime concealment, high IQ, huge amount,hogan outlet, resulting in extremely bad social impact, fugitives and Booty-Recovery has become the primary task to combat this type of crime. For effective means of the forces of the international community, China has been in 2005 and ratified the United Nations Convention against Corruption, in accordance with the provisions of Article 57 of the Convention,ray ban, the requested State Party to demand the return of confiscated property to the requesting State Party, based on the requesting State Party effective verdict. Therefore, the request for mutual legal assistance obligated to the opposite party to provide effective legal instruments to recover the property, domestic law should also build the property before a judgment is the confiscation procedures to comply with the requirements of the Convention. Finally, judicial practice, the presence of a large number of terrorist organizations that the financing of terrorist activities and the transfer of assets for the purpose of, in our country, money laundering crime. China was in 2006 by the Anti-Money Laundering Act, given the temporary freezing of financial institutions 48 hours, but less than the case of the criminal suspect or defendant case, we are still not entitled to the funding of terrorist organizations have been frozen and property entity punishment. In order to effectively carry out the anti-money laundering international cooperation to combat the increasingly rampant transnational terrorist crimes, we need to confiscation of property before judgment in law. Second, the basic characteristics of the confiscation of property before the judgment first before the judgment, confiscation of property has universality. Article 54 of the United Nations Convention against Corruption, "the provisions of paragraph 1, 3: in order to achieve international cooperation in confiscation, States Parties shall in accordance with its domestic law" to consider taking necessary measures, so that the perpetrators death, flight or absence confiscation of such property without a criminal conviction in the case can not be prosecuted, or other relevant circumstances. " In accordance with the requirements of the Convention, States have developed different features of the judgment before the property forfeiture proceedings, in general, can be divided into three categories: The first category is the the civil forfeiture mode used by the United States, the United Kingdom and Australia, and other common law countries, that is, from The government proposed a "property" in order to achieve the basic requirements of due process of constitutional amendment to combat drug trafficking, money laundering and other criminal action in rem; civil law countries such as Germany, France and Italy with the criminal forfeiture model, that for the purpose of Security Measures in case there are clearly defined in the law to make an order of forfeiture alone; The third category is a separate legislative model in Singapore, particularly in the single-line legal provisions of corruption, money laundering, drug dealing, terrorist crime cases of criminal suspects or defendants property forfeiture proceedings. Therefore, the provisions of the confiscation of the general practice of the criminal justice program both countries, but also the inevitable requirement of the International Covenant on the property before judgment. Although the applicable civil forfeiture, confiscation of property prior to conviction and sentencing of the model can effectively solve the problem, but the amendment adopted criminal forfeiture mode,toms outlet, because on the one hand of criminal or civil proceedings boundaries more obvious, the two are not mutually negotiate Select the civil forfeiture the model difficult legislative space; On the other hand, China's criminal legislation does not develop the tradition of a single law, and related issues are concentrated provisions in the Penal Code and the Code of Criminal Procedure, a separate legislative model difficult legislature accepted. Select the a criminal forfeiture mode not only with China's basic national conditions and the litigation culture fit, and also the same strain of civil law terms of reference pattern of litigation. Secondly, the verdict before the confiscation of property of an exceptional nature. Particularity is that the program is limited derogation of the basic principles of procedural justice, but not the subversion: on the one hand, pre-judgment confiscation of property concern is how to prevent the escape of suspects accused, death due to delays in the proceedings and the loss of state assets programming emphasis on to pursue lawsuits efficiency rather than litigation impartial; confiscation of property of the object before the judgment, on the other hand, things rather than people, the procedures involved suspects, the property rights of the accused. As property rights can be quantified as a currency, even confiscation judgment error by the trial supervision program and perform rotation program compensation suspects, defendants and interested parties of the material damage, easy to carry out relief. Therefore, the judgment, the confiscation of property programs do not need to resolve the issue of criminal responsibility for criminal suspects or defendants, can be exempted from the presumption of innocence, the prohibition of double jeopardy principle bound, coupled with the confiscation of the object is easier to carry out relief and ordinary criminal proceedings relative than the confiscation of property before judgment can be more emphasis on the pursuit of the effectiveness of the proceedings, in essence, the derogation of the basic principles of procedural justice. Pre-judgment confiscation of property not subvert the basic principles of procedural justice: on the one hand, property forfeiture proceedings before the judgment is limited to the special procedures of the corruption and bribery crime, terrorist crimes and other major criminal cases ", does not apply to ordinary criminal cases. As China's economic underdevelopment and uneven development, and in some areas authorities handling the lack of funding for casework, in the presence of a large number of judicial practice under the guise of handling criminal cases interfere in economic disputes, random seizure, detention, and frozen. Judgment before it is confiscated for the suspects involved in the defendant's property, the program may be designed to confiscation of property alienation from the "special procedures" for authorities handling routine procedures for the purpose of the addition of funding for casework. To this end, the new provisions will be limited to the scope of the case in major criminal cases of corruption and bribery, terrorist crimes, in order to prevent the abuse of property forfeiture proceedings before the judgment,cheap oakley, we must be clear as the legal position of the special procedures. On the other hand,mulberry outlet, pre-judgment confiscation of property and not to abandon the pursuit of the fair values ​​of the proceedings. Litigation justice requires us to maintain the basic structure of the criminal proceedings,mulberry outlet, to adhere to public hearing and give the suspect, the defendant and interested parties the corresponding right of appeal should also aggravate the the procuratorial organs burden of proof and a corresponding increase in the standard of proof. Therefore, the impairment of the basic principles of procedural justice does not mean to overturn the principle, we can be called "limited derogation. Provisions of the understanding and application of pre-judgment, pre-judgment property confiscation procedures confiscation of property procedures to solve the problem how suspects less than a case, the court not only affirmed their behavior is a crime and the confiscation of their property, do not infringe on the basic human rights of suspects, defendants, in the understanding and application of the new provisions to comply with the basic law of the litigation. First, the in pretrial preparation procedures, we should not be 280 cases range broadly interpreted, should mainly two types of crimes of corruption, bribery and terrorist activities,longchamp, and the confiscation procedures should formally opened. In addition, the public security organs in to the People's Procuratorate confiscate the illegal income shall conduct a public investigation of the suspect, the defendant's illegal income, and involved in the case of property, the investigation process should listen to the views of interested parties, when necessary, should be allowed to stake the relationship between people involved in the seizure, seizure, freezing the whole process. Second, the trial proceeding, the the Pretrial announcement should include the type, quantity, name and location of the confiscation of property, so that criminal suspects, defendants and their close relatives and third parties aware of the basic situation of the property will help to urge the suspects and the accused is brought to justice in a timely manner, to participate in the proceedings. And in accordance with the provisions of section 281, property confiscation procedures should be hearing principle, for interested parties to participate in the proceedings, the people's court shall trial. In case no interested parties to participate in the proceedings, the people's court shall seek to appoint a defense lawyer for the suspects,oakley outlet, the accused in order to prevent the alienation of the program for one-way written forfeiture proceedings. The procuratorial organs should present evidence to prove that the confiscated property is involved property, but also to prove substantial connection between the property confiscated crime, the evidence should be reliable and sufficient extent beyond a reasonable doubt. Finally, in terms of the implementation of the program, in the end of the application for hearing to confiscate the illegal income, the fugitive suspects, defendants appearing in court, and previously the property of their suspected offense proceedings should confiscation judgment review found confiscation the suspect, the defendant property indeed wrong and should be corrected by trial supervision program error should exist for the confiscation of property through the implementation of the Rotary program shall be returned, should also compensate for the loss of necessary. (Author: Litigation System and Judicial Reform Research Center of Renmin University of China) Exclusive articles Sina statement: This work (text, pictures, graphics and audio and video) special for Sina to use, without authorization, any media,ray ban uk, and individuals may in whole or in part .
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